Canada, U.K. Take Aim at Legitimate Food Marketing

August 21, 2017

Even though all varieties of truthful and non-deceptive food advertising have long received commercial speech protections under the First Amendment of the U.S. Constitution, this is not the case in other countries – even our next-door neighbors. The Canadian government is currently evaluating whether to reduce children’s exposure to “unhealthy” food and beverage marketing by applying restrictions to children and adolescents up to 17 years old. These restrictions could apply to TV, online, and print advertising as well as product labelling, in-store displays and even end some sponsorships for sports teams. Regulating the use of characters and celebrities and branding for these foods is also being considered.

The definition of “unhealthy” is currently under review, but two options were initially put forward. Both options would restrict the advertising of non-diet soda, ice cream, candies, most sugar-sweetened cereals, cheese and juice. The more stringent of the two options would also include foods such as granola bars, potato chips, French fries, and calorie-reduced cheese in the “unhealthy” category.

This move comes after Prime Minister Justin Trudeau emphasized his support for crafting a federal food marking regulation based on the localized regulation in place today in the province of Quebec. Quebec bans all forms of commercial advertising to children under the age of 13, and has been doing so since 1980.

While there are many glaring problems with the Canadian proposal, the most striking is that the age limit for “children” would be raised from 13 to 17 years of age. We will go into more detail about the legal arguments against this type of advertising ban in our next blog post, but unfortunately, the “adolescent creep” restrictions seem to be a growing trend throughout the world.  

In addition to the proposed Canadian regulation, the United Kingdom has recently put into place its own food marketing restriction on non-broadcast media to adolescents under the age of 16. These rules ban the advertising of food and drinks high in fat, salt, or sugar (HFSS) in children’s non-broadcast media. “Children’s media” includes media where individuals under 16 years of age make up over 25 percent of the audience. While not as restrictive as the Canadian proposal, the U.K.’s rules still cover a much wider swath of the adolescent population than is the norm in most other parts of the world, including in the United States.

Advertisers in both Canada and the U.K. have actively voiced their opposition to these proposals. Our counterparts at the Association of Canadian Advertisers (ACA) are pushing back on their government’s “paternalistic” proposal and are developing an alternative that would institute reasonable restrictions on such advertising. In Europe, the World Federation of Advertisers (WFA) voiced strong opposition to the U.K. rules and is currently providing input on the Food Standards Agency’s nutrient profiling model. In addition, global self-regulatory bodies similar to the U.S. Children's Food and Beverage Advertising Initiative (CFBAI) will continue to urge food companies to only advertise products that meet strict nutrition criteria to children under age 12 and will enforce against violations of these companies’ pledges.

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